STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3605

)

CARROLL D. ROBERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 23, 1992, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Henri C. Cawthon

Asst. General Counsel Department of State Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

For Respondent: Carrol D. Roberson

12101 U.S. 301 North

Thonotosassa, Florida 33592 STATEMENT OF THE ISSUES

Whether Respondent is guilty of negligence, incompetency, or misconduct, in violation of Section 493.6118(1)(f), Florida Statutes, by abandoning his assigned armed guard post without prior approval of his superior.

PRELIMINARY STATEMENT

On May 18, 1992, Petitioner filed a one count Administrative Complaint against Respondent. Respondent completed an Election of Rights disputing the facts and seeking a formal hearing on June 5, 1992, and also filed an Answer to the Administrative Complaint. The Department referred this case to the Division of Administrative Hearings on June 15, 1992 and following discovery and prehearing motions, this hearing was held. Petitioner called five witnesses and offered one exhibit in evidence. Respondent called nine witnesses, including himself, and seven exhibits were admitted in evidence. A transcript was not provided, but each party submitted proposed findings of fact an conclusions of law. My specific rulings on each party's proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent held a Class "D" Security Officer License Number D87-20610, a Class "G". Statewide Firearm's License Number G87-03219, and a Class "C" Private Investigator License Number C91-00109.

   
   

2. For several months prior to December 28, 1991, Respondent was employed by GSI Security, a licensed security agency in Tampa, Florida. Under the terms of his employment, Respondent was hired as a part-time armed security guard. He was not required to work a set shift or duration of hours. Respondent could set his own hours, and was authorized to terminate a shift early, upon proper notification to his shift supervisor.

   
   

3. On December 28, 1991, Respondent was scheduled to work as a armed guard at the Fletcher Woods apartment complex beginning at 6:00 p.m. Joseph Petrick was the other armed guard assigned to the post that evening.

   
   

4. Shortly after 6:00 p.m., a young child was hit by a car in the Fletcher Woods parking lot. Respondent attempted to call 911 on his cellular phone, but was unable to do so, due to a malfunction of the system. Respondent, who was on duty, requested office personnel have an ambulance dispatched to the scene. Respondent engaged in a heated exchange over the radio/telephone with GSI Security owner, T. Paul Bunnell, when Bunnell refused to make the call.

   
   

5. An ambulance was eventually called, and the child was taken to the hospital. However, several times during the evening, Respondent used the radio airwaves to express his displeasure with the company's management. Most, if not all of his complaints, were directed at Bunnell, and the company's dialing capabilities.

   
   

6. When Bunnell got the first call from Respondent regarding the need for an ambulance, he was at home tending to his own injured child. Later, he manned a guard post at the Live Oaks apartment complex which is within radio range of the Fletcher Woods apartments.

   
   

7. GSI Security Operations Manager, Norman Pepper, went on road duty at around 10:00 p.m. on the evening in question. "Road duty" entails checking various posts for GSI Security clients.

   
   

8. Prior to midnight, Respondent notified Bunnell and Pepper that he was resigning and leaving his post at midnight. Bunnell told him to stay on post until 2:00 a.m., and that if he did not, Bunnell would report him to the Division of Licensing for abandoning his post.

   
   

9. After resigning over the radio, Respondent told Joseph Petrick that he was quitting. Around midnight he proceeded to the front office of the apartment complex to fill out his report on the evening's events.

   
   

10. In the meantime, Bunnell made efforts to replace Respondent. Mike Pennington, a Class "D" unarmed guard, volunteered his services, and filled in at Fletcher Woods apartments until 2:00 a.m. Pennington was originally scheduled to relieve an unarmed guard at another location at midnight, but that guard agreed to work until 2:00 a.m.

11. Pennington arrived at Fletcher Woods apartments between 12:15 and 12:30 a.m., and contacted Petrick. Petrick heard Respondent sign-off about 12:30 a.m.

    
    

12. At the hearing Respondent testified that he picked his wife up at work at approximately 12:30 a.m. so that they could relieve the baby sitter who had to be home at 1:00 a.m.

    
    

13. On December 29, 1992, Respondent tendered his resignation letter to the company.

    
    

14. The Fletcher Woods apartment post is the most dangerous assignment for GSI security guards. When Division of Licensing Investigator, Eugene Blitch, asked Respondent what happened on the night in question, Respondent told him that he walked off the job. He also told Mr. Blitch that he was a part-time employee who could make up his own schedule without prior approval for GSI Security management.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

16. Respondent is charged in an Administrative Complaint, filed by Petitioner with a violation of Section 493.6118(1)(f), Florida Statutes.

17. Section 493.6118(1)(f), Florida Statutes, reads in pertinent part: 493.6118 Grounds for disciplinary action.

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any license, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       * * *

       (f) Proof that the . . . licensee is guilty

       of fraud or deceit, or of negligence, incompetency, or misconduct, in the practice of the activities regulated under this chapter.

       
       

18. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of negligence, incompetency, misconduct, in violation of Section 493.6118(1)(f), Florida Statutes, in that he abandoned his assigned armed guard post without prior approval of his supervisor. The evidence is not credible that Respondent ever notified any GSI Security personnel that he had to pick up his wife, and relieve their baby sitter. Nor did Respondent mention the need to pick up his wife to Mr. Blitch. As far as Mr. Bunnell, Mr. Pepper, and Mr. Petrick were concerned, Respondent had quit his job over dissatisfaction with GSI Security management. Nevertheless, although Bunnell was infuriated by Respondent's remarks during the course of the evening, under the terms of his employment, Respondent was not required to work a set shift or duration of hours on the night in question.

19. On December 28, 1991, Respondent terminated his shift early, upon notification of his shift supervisor, Pepper. Respondent remained in the front office of Fletcher Woods apartments completing his paperwork, until the time Pennington arrived to replace him.

    
    

20. Therefore, Respondent cannot be found guilty of negligence, incompetence or misconduct in his conduct as a security guard.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Respondent be found not guilty of violating Section

493.6118(1)(f), Florida Statutes and the complaint be dismissed.

DONE and ENTERED this 24th day of December, 1992, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1, 2, 3 (but incomplete), 4, 5, 6, 7, 8, 9,

10, 11, 12 (in part), 15, 17, 18 (in part).

Rejected as against the greater weight of evidence: paragraphs 12 (in part), 13, 14, 18 (in part).

Rejected as irrelevant: paragraph 16.

Proposed findings of fact submitted by Respondent. Accepted in substance: paragraph 3, 4 (in part).

Rejected as irrelevant or immaterial: paragraphs 1, 2, 4 (GSI Op Manager Pepper

testified to these facts), 5, 6, 7, 8, 9, 10.

COPIES FURNISHED:

Henri C. Cawthon Asst. General Counsel Department of State Division of Licensing The Capitol, M.S. #4

Tallahassee, Florida 32399-0250

Carrol D. Roberson 12101 U.S. 301 North

Thonotosassa, Florida 33592

Jim Smith, Secretary of State Department of State

The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater, General Counsel Department of State

The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-003605

Orders for Case No: 92-003605